IN THE CASE OF:	   

		BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120009927 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she received a medical discharge.

2.  She states she believes the reason for separation shown on her DD Form 214 is an error because she has a 40 percent (%) disability rating due to an injury she received while she was in the military.  She was unaware that her DD Form 214 needed to be changed after she started receiving disability benefits.  She is now in the process of buying a home, and she would like to be able to use a Department of Veterans Affairs (VA) home loan guarantee.  She states she has gone to the Colorado Adjutant General to try to have this correction made.

3.  She provides:

* memorandum for record (MFR), subject:  Issuance of DD 215 [Correction to DD Form 214] – [Applicant]
* DD Form 214 (member copy 4)
* correspondence she received from the VA
* Application, License, and Record of Marriage

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of 


Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's complete military record is not available to the Board for review.  This case is being considered based on the documents she provides and a DA Form 2173 (Statement of Medical Examination and Duty Status), which is the lone document in her Army Military Human Resource Record (AMHRR) maintained in the interactive Personnel Electronic Records Management System (iPERMS).  

3.  On an unknown date, the applicant enlisted in the Colorado Army National Guard (COARNG).  

4.  She provides a DD Form 214 showing she entered active duty training (ADT) on 20 October 1998.  

5.  The DA Form 2173 in her AMHRR shows, on or about 12 May 1999, she developed a right leg stress fracture while doing physical training while attending advanced individual training at Fort Jackson, SC.  The injury was considered to have been incurred in the line of duty.  

6.  The DD Form 214 she provides shows she was honorably released from ADT on 12 June 1999 by reason of completion of required active service.  The form shows she was awarded military occupational specialty (MOS) 71L (Administrative Specialist).  

7.  She provides an MFR, subject:  Issuance of DD 215 – [Applicant], dated 8 May 2012, from the G-1, COARNG, Joint Force Headquarters – Colorado, Centennial, CO.  The MFR states:

	a.  The applicant was issued a DD Form 214 from Fort Jackson, SC, indicating service for ADT from 20 October 1998 to 12 June 1999.  A second DD Form 214 from Fort Jackson, SC, indicates service from 20 October 1998 to 


17 February 2000, and shows a narrative reason for separation of "Unsatisfactory Performance."  

	b.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) was issued by the COARNG with an effective date of 17 February 2000 with a narrative reason for separation of "Medically Unfit for Retention per [Army Regulation] 40-501 [Standards of Medical Fitness]."  

	c.  After a review of the available records, it was determined there was no documentation supporting a medical discharge or an unsatisfactory performance discharge.

8.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Separation by reason of disability (i.e., a "medical discharge") requires processing through the PDES.

9.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not empowered by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes the standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of her DD Form 214 to show she received a medical discharge.  

2.  She provides a DD Form 214 showing she was released from ADT on 12 June 1999.  The form shows she was awarded an MOS, indicating she satisfactorily completed training.  Having satisfactorily completed training also indicates she was likely fit to perform her military duties at the time of her release from ADT.  

3.  The fact that the VA granted her a service-connected disability rating has no bearing on the information shown on her DD Form 214.  The VA awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Receiving a rating from the VA is not evidence of error in the reason a Soldier was separated or discharged from the Army.  

4.  In the absence of evidence showing she had been found unfit prior to her release from ADT, there is no basis for changing the type of discharge recorded on her DD Form 214.

5.  The G-1, COARNG, states she was discharged from the COARNG on 17 February 2000 by reason of being medically unfit for retention.  The NGB Form 22 documenting this discharge is not available for review nor is the second DD Form 214 mentioned in the G-1, COARNG MFR.  It appears her "medical discharge" is documented on the NGB Form 22.  

6.  In view of the foregoing, there is no basis for granting the requested relief.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20120009927





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ABCMR Record of Proceedings (cont)                                         AR20120009927



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